The Principal Commissioner Of Income Tax-3 v. M/S India Debt Management Pvt. Ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.266 OF 2017 The Principal Commissioner of Income Tax-3 .... Appellant versus M/s India Debt Management Pvt. Ltd.... Respondent….... Mr.A.R. Malhotra a/w Mr.N.A Kazi, Advocate for Appellant.Mr.A.R. Malhotra a/w Mr.N.A Kazi, Advocate for Appellant. Mr.Jehangir Mistri, Senior Counsel, a/w Mr.Sameer Dalal, Advocate for Respondent.Mr.Jehangir Mistri, Senior Counsel, a/w Mr.Sameer Dalal, Advocate for Respondent. CORAM : AKIL KURESHI &SARANG V. KOTWAL, JJ.DATE: 15[th] APRIL, 2019. P.C. : 1. This Appeal is filed by the revenue to challenge a judgment of Income Tax Appellate Tribunal. Following questionswere presented for our consideration;were presented for our consideration; (a)Whether, on the facts and in the circumstance ofthe case and in law, the Hon’ble Tribunal erred incomparing the overall average rate of interest of11.30% during the year without appreciating thatthe case and in law, the Hon’ble Tribunal erred incomparing the overall average rate of interest of11.30% during the year without appreciating that 2 / 19 02-ITXA-266-17.odt each series of debentures issued in different yearswas a separate international transaction and eachtransaction was required to be benchmarked separately? (b) Whether, on the facts and in the circumstance ofthe case and in law, the Hon’ble Tribunal erred innot appreciating the fact that the amount ofdisallowance u/s 14A of the Act has to be computedas per Rule 8D of the I.T. Rules, 1962 as held in theorder of the Hon’ble High Court in the case of M/sGodrej & Boyee Manufacturing Co. Ltd.?the case and in law, the Hon’ble Tribunal erred innot appreciating the fact that the amount ofdisallowance u/s 14A of the Act has to be computedas per Rule 8D of the I.T. Rules, 1962 as held in theorder of the Hon’ble High Court in the case of M/sGodrej & Boyee Manufacturing Co. Ltd.? (c) Whether, on the facts and in the circumstance ofthe case and in law, the Hon’ble Tribunal erred indeleting the addition on account of interest accruedfrom (1) Brandhouse Retails Ltd. (2) Sanghi IndsLtd. and (3) Ganesh Benzoplast Ltd. holding thatthese three parties had become NPA?the case and in law, the Hon’ble Tribunal erred indeleting the addition on account of interest accruedfrom (1) Brandhouse Retails Ltd. (2) Sanghi IndsLtd. and (3) Ganesh Benzoplast Ltd. holding thatthese three parties had become NPA? 2. Regarding question (a) -: The issue relates to assessment year 2010-2011. TheRespondent-Assessee is a company registered under theCompanies Act and it is a Non-Banking Finance Company 3 / 19 02-ITXA-266-17.odt(‘NBFC’ for short). The assessee is engaged in the business ofidentifying the investment opportunities in financially distressedcompanies, which otherwise have inherent viable businessproposition. The assessee acquires and invests in such mediumsize enterprises which are in financial distress. This essentiallymakes the investments of the assessee company a high riskinvestment. The credit rating of the assessee company thereforeis categorized as ‘BBB-’. The assessee raised funds through debtinstruments from group companies by issuing compulsoryconvertible debentures. The rate of interest of such borrowingfrom its Associate Enterprises (‘AE’ for short) by the assesseewas the subject matter of transfer pricing adjustments. It wasnoticed that the assessee had issued such debentures by payinginterest at the rate of 7% in the year 2006. Later borrowingswere at higher rate of interest ranging from 9.75 to 14%.Average interest rate of such CCDs came to 11.30%. The Transfer Pricing Officer undertook Arm’s lengthadjustments and held that the interest paid by the assessee to 4 / 19 02-ITXA-266-17.odt The Transfer Pricing Officer undertook Arm’s lengthadjustments and held that the interest paid by the assessee to 4 / 19 02-ITXA-266-17.odt the AEs was not at Arm’s length. He made adjustment of a sumof Rs.48.53 out of total interest payment 98.44 crores paid bythe assessee. This issue was therefore carried by the assesseebefore the tribunal. Tribunal by the impugned judgment deletedthe addition making following observations; “13. Now coming to the issue, whether the arm’s length interestrate arrived at by the TPO and endorsed by the DRP by adopting USDCorporate Bond Rate and LIBOR interest rate based on externalcommercial borrowing is justified in the present case or not. First of all, asstated in the foregoing paragraphs and reiterated several times that theCCDs have been issued in INR denominated debt and the interest paid /payable is also in terms of INR. Once the tested transaction is in INRdenominated debt, then interest rate must necessarily be based oneconomic and market factors affecting Indian currency and data availablefor debt issuances in India or INR denominated rather than foreigncurrency rate or external data. The base rate on which interest ratedepends is directly related to the currency or denomination of issuanceand, therefore, it should be taken into account according to the marketconditions prevalent in the country of such currency, here in this caseIndia. The market conditions capable of capturing best of the rates do notdepend much on any place but rather on currency concern, because thesupply and demands of funds in a specific currency the price/interest ratesfor funds denominated in that currency. Hence, cost of borrowing funds denominated in INR or lending rates based on INR loans/debt instrumentissuances is more reliable and ideal base for benchmarking similartransactions undertaken by the companies or entities with similar ratings. 14.The TPO and DRP in our opinion have committed a fallacy,firstly, by considering the AE as a “tested party” and secondly, relyingupon USD Corporate Bond Rates to benchmark the ALP of the interest ratebecause the interest rates for bonds or loan has to be seen from the pointof view of borrowers creditworthiness and not the lender’screditworthiness. Thus, the entire approach of the TPO/DRP in applyingUSD Corporate bond rates to benchmark the interest transaction in ablanket manner is not correct. As pointed out by Ld. Senior counsel, now,Hon’ble Delhi High Court in the case of Cotton Naturals P Ltd. (supra)have held that, arm’s length interest rate should be computed based onmarket determined interest rate applicable to currency in which loan hasto be repaid. The relevant observation of the Hon’ble High Court in thisregard reads as under:- “39. The question whether the interest rateprevailing in India should be applied, for the lenderwas an Indian company/assessee, or the lendingrate prevalent in the United States should beapplied, for the borrower was a resident and anassessee of the said country, in our consideredopinion, must be answered by adopting andapplying a commonsensical and pragmaticreasoning. We have no hesitation in holding that “39. The question whether the interest rateprevailing in India should be applied, for the lenderwas an Indian company/assessee, or the lendingrate prevalent in the United States should beapplied, for the borrower was a resident and anassessee of the said country, in our consideredopinion, must be answered by adopting andapplying a commonsensical and pragmaticreasoning. We have no hesitation in holding that the interest rate should be the market determinedinterest rate applicable to the currency concerned inwhich the loan has to be repaid. Interest ratesshould not be computed on the basis of interestpayable on the currency or legal tender of the placeor the country of residence of either party. Interestrates applicable to loans and deposits in thenational currency of the borrower or the lenderwould vary and are dependent upon the fiscal policyof the Central bank, mandate of the Governmentand several other parameters. Interest rates payableon currency specific loans/ deposits are significantlyuniversal and globally applicable. The currency inwhich the loan is to be re-paid normally determinesthe rate of return on the money lent, i.e. the rate ofinterest. Klaus Vogel on Double TaxationConventions (Third Edition) under Article 11 inparagraph 115 states as under:- x x x x x x x x x x x x x x x x x x x x x x x … 40.The aforesaid methodologyrecommended by Klaus Vogel appeals to us andappears to be the reasonable and proper parameterto decide upon the question of applicability ofinterest rate. The loan in question was given inforeign currency i.e. US $ and was also to be repaid in the same currency i.e. US $. Interest rateapplicable to loans granted and to be returned inIndian Rupees would not be the relevantcomparable. Even in India, interest rates on FCNRaccounts maintained in foreign currency aredifferent and dependent upon the currency inquestion. They are not dependent upon the PLR rate,which is applicable to loans in Indian Rupee. ThePLR rate, therefore, would not be applicable andshould not be applied for determining the interestrate in the extant case. PLR rates are not applicableto loans to be re-paid in foreign currency. Theinterest rates vary and are thus dependent on theforeign currency in which the repayment is to bemade. The same principle should apply”. If we apply the same ratio, then arm’s length interest rate should bebased on INR in which CCDs has been issued and the currency inwhich interest is being paid and not on any foreign currency lendingrate. Thus, respectfully following the aforesaid ratio, we reject theTPO’s application of USD Corporate Bonds Rate as well as theLIBOR rate for benchmarking the interest transaction in this case. 15.The last leg of the controversy is, whether thebenchmarking analysis done by the assessee is correct or not andwhether the average rate of interest of 11.30% paid by the assesseeto its AE is at ALP or not. So far as the assessee’s benchmarking If we apply the same ratio, then arm’s length interest rate should bebased on INR in which CCDs has been issued and the currency inwhich interest is being paid and not on any foreign currency lendingrate. Thus, respectfully following the aforesaid ratio, we reject theTPO’s application of USD Corporate Bonds Rate as well as theLIBOR rate for benchmarking the interest transaction in this case. 15.The last leg of the controversy is, whether thebenchmarking analysis done by the assessee is correct or not andwhether the average rate of interest of 11.30% paid by the assesseeto its AE is at ALP or not. So far as the assessee’s benchmarking analysis as done in TP Study report based on external data usingThomson Reuters’ DealScan, and Bloomberg Database, we find thatsuch an approach is not correct, firstly, there are no INRdenominated debt issuance available on such databases and;secondly, in absence of such a data the assessee has to carry outhuge adjustments on account of country risk, currency risk andtenor risk. With all these factors of adjustments, it would be difficultto arrive at an appropriate arm’s length range of price; therefore, inour opinion such an approach of the assessee for benchmarking thearm’s length interest rate may not be correct. However, as regardsthe search undertaken for comparable debt issuances in BSE data,we find that the assessee has shortlisted two comparables namely;Starlight Systems Private Limited and Share Microfin Limited whichhave a coupon rate of 15% and 13.75%. Since these data belong toyear 2013, the assessee had made minor tenor adjustment to factorthe time period to arrive at interest rate of 15.97% and 14.05%giving a mean rate of 15.01%. Though the assessee was required tobenchmark its transaction by taking the financial year data for year2009-10, but, if such a data were not available then it cannot beheld that such a tenor adjustment for taking into time periodcannot be made under CUP, if it has been made quite accuratelytaking into account the material factors relating to time of thetransaction affecting the price. We though agree that, a high degreeof comparability is required under CUP, but in absence of such acomparable data, a minor adjustment can be made to eliminate thematerial effect of time difference for arriving at a comparableuncontrolled price. Now before us, the assessee had filed two comparable transactions for the year 2009, that is, for the samefinancial year in the case of Shriram Transport Financial CompanyLtd. and Tata Capital Ltd., wherein, for credit rating of AAEnterprises the coupon rate of interest per annum was between 11%to 12% for a tenor of 60 months. The yield on redemption is alsoaround 11.25% to 12%. If for a credit rating company AA orAA(+) the interest rate is ranging between 11% to 12%, then in thecase of the assessee which is admittedly BBB(-) credit ratingcompany, 11.30% interest paid by the assessee to its AE is muchwithin the arm’s length rate. This data/document from publicdomain now made available before us is worth relying tobenchmark and analyze the current transaction of coupon rate ofinterest paid/payable on CCDs issued by the assessee. Accordingly,we hold that 11.30% interest rate is at arm’s length price. Thus, inour conclusion, the transfer pricing adjustment made by the TPOand as confirmed by the DRP at Rs.48,53,19,310/-stands deletedand consequently ground no. 1 is allowed.” 3. Having heard learned Counsel for the parties andhaving perused the materials on record, we are broadly inagreement with the view of tribunal. The significant features ofthe assessee’s case were that the assessee was mainly engaged inidentifying the companies in financial distress whose productswere otherwise viable and taking over or financing of such 3. Having heard learned Counsel for the parties andhaving perused the materials on record, we are broadly inagreement with the view of tribunal. The significant features ofthe assessee’s case were that the assessee was mainly engaged inidentifying the companies in financial distress whose productswere otherwise viable and taking over or financing of such 10 / 19 02-ITXA-266-17.odtcompanies. The business of the assessee was thus froth withinherent risks. Its credit rating therefore was relatively low of‘BBB-’. The assessee was raising funds for such investmentsthrough issuance of debentures to its AEs. The tribunal even oncomparison found that the average rate of interest of 11.30%paid by the assessee to its AEs was not excessive and was in anycase lower than in the comparable instances. The tribunalrejected the transfer pricing adjustment comparing the rate ofreturn for the assessee’s US based AE. This later conclusion ofthe Tribunal is supported by following decisions. 4. Division Bench of Delhi High Court in case ofCommissioner of Income Tax Vs. M/s Cotton Naturals (I) Pvt.Ltd., reported in (2015) 55 Taxmann.com 523, had held andobserved as under; “39.The question whether the interest rate prevailing inIndia should be applied, for the lender was an Indiancompany/assessee, or the lending rate prevalent in the UnitedStates should be applied, for the borrower was a resident and an assessee of the said country, in our considered opinion, must beanswered by adopting and applying a commonsensical andpragmatic reasoning. We have no hesitation in holding that theinterest rate should be the market determined interest rateapplicable to the currency concerned in which the loan has to berepaid. Interest rates should not be computed on the basis ofinterest payable on the currency or legal tender of the place orthe country of residence of either party. Interest rates applicableto loans and deposits in the national currency of the borroweror the lender would vary and are dependent upon the fiscalpolicy of the Central bank, mandate of the Government andseveral other parameters. Interest rates payable on currencyspecific loans/deposits are significantly universal and globallyapplicable. The currency in which the loan is to be re-paidnormally determines the rate of return on the money lent, i.e.the rate of interest. Klaus Vogel on Double TaxationConventions (Third Edition) under Article 11 in paragraph 115states as under:- "The existing differences in the levels of interest rates do notdepend on any place but rather on the currency concerned.The rate of interest on a US $ loan is the same in New Yorkas in Frankfurt-at least within the framework of free capitalmarkets (subject to the arbitrage). In regard to the questionas to whether the level of interest rates in the lender's Stateor that in the borrower's is decisive, therefore, primarilydepends on the currency agreed upon (BFH BSt. B1. II 725 "The existing differences in the levels of interest rates do notdepend on any place but rather on the currency concerned.The rate of interest on a US $ loan is the same in New Yorkas in Frankfurt-at least within the framework of free capitalmarkets (subject to the arbitrage). In regard to the questionas to whether the level of interest rates in the lender's Stateor that in the borrower's is decisive, therefore, primarilydepends on the currency agreed upon (BFH BSt. B1. II 725 (1994), re. 1 AStG). A differentiation between debt-claims ordebts in national currency and those in foreign currency isnormally no use, because, for instance, a US $ loan advancedby a US lender is to him a debt-claim in national currencywhereas to a German borrower it is a foreign currency debt(the situation being different, however, when an agreementin a third currency is involved). Moreover, a difference ininterest levels frequently reflects no more than differentexpectations in regard to rates of exchange, rates of inflationand other aspects. Hence, the choice of one particularcurrency can be just as reasonable as that of another, despitedifferent levels of interest rates. An economic criterion for oneparty may be that it wants, if possible, to avoid exchangerisks (for example, by matching the currency of the loan withthat of the funds anticipated to be available for debt service),such as taking out a US $ loan if the proceeds in US $ areexpected to become available (say from exports). If anexchange risk were to prove incapable of being avoided (say,by forward rate fixing), the appropriate course would be toattribute it to the economically more powerful party. But,exactly where there is no _special relationship', this willfrequently not be possible in dealings with such party.Consequently, it will normally not be possible to review andadjust the interest rate to the extent that such rate dependson the currency involved. Moreover, it is questionablewhether such an adjustment could be based on Art. 11 (6).For Art. 11(6), at least its wording, allows the authorities to _eliminate hypothetically' the special relationships only inregard to the level of interest rates and not in regard to othercircumstances, such as the choice of currency. If such othercircumstances were to be included in the review, there wouldbe doubts as to where the line should be drawn, i.e., whetheran examination should be allowed of the question of whetherin the absence of a special relationship (i.e., financial power,strong position in the market, etc., of the foreign corporategroup member) the borrowing company might not havecompletely refrained from making investment for which itborrowed the money." ” 5. Similarly this Court in case of Commissioner Income Tax-2, Vs. Tata Autocomp Systems Ltd., reported in 374 ITR516, had observed as under; “7.We find that the impugned order of theTribunal inter alia has followed the decisions of the BombayBench of the Tribunal in cases of VVF Ltd. v. Dy. CIT (supra)and Dy. CIT v. Tech Mahindra Ltd. (supra) to reach theconclusion that ALP in the case of loans advanced to AEswould be determined on the basis of rate of interest beingcharged in the country where the loan is received/consumed.Mr. Suresh Kumar the learned counsel for the Revenueinformed us that the Revenue has not preferred any appealagainst the decision of the Tribunal in VVF Ltd. v. Dy. CIT (supra) and Dy. CIT v. Tech Mahindra Ltd. (supra) on theabove issue. No reason has been shown to us as to why theRevenue seeks to take a different view in respect of theimpugned order from that taken in VVF Ltd. v. Dy. CIT(supra) and Dy. CIT v. Tech Mahindra Ltd. (supra). TheRevenue not having filed any appeal, has in fact accepted thedecision of the Tribunal in VVF Ltd. v. Dy. CIT (supra) andDy. CIT v. Tech Mahindra Ltd. (supra). ” 6. (supra) and Dy. CIT v. Tech Mahindra Ltd. (supra) on theabove issue. No reason has been shown to us as to why theRevenue seeks to take a different view in respect of theimpugned order from that taken in VVF Ltd. v. Dy. CIT(supra) and Dy. CIT v. Tech Mahindra Ltd. (supra). TheRevenue not having filed any appeal, has in fact accepted thedecision of the Tribunal in VVF Ltd. v. Dy. CIT (supra) andDy. CIT v. Tech Mahindra Ltd. (supra). ” 6. Before closing this issue we may note that the tribunalin the impugned judgment has made certain observationssuggesting that the identification of the “tested party” isimperative while applying other methods from comparison fortransfer pricing and not while applying CUP method. Our non-consideration of the revenue’s Appeal in the present case, shouldnot be seen as putting our seal on such observations of thetribunal. In other words, we keep such question open to beexamined in an appropriate case. In the present case,independent of such observations of the tribunal, we find thatthe conclusions arrive at, are based on evidence on record whichconclusions call for no interference. The issue is no longer res-intigra. The facts are that theassessee had not earned any exempt, income during the yearunder consideration. As held earlier Delhi High Court whichjudgment is also followed repeatedly by our Court, in case ofChemvinvest Ltd. Vs. Commissioner of Income Tax, reportedin 378 ITR 33, in such a case disallowance of expenditure undersection 14A of the Act would not be permissible. The decision ofDelhi High Court was carried in the appeal by the revenue. TheSLP has been dismissed by the Supreme Court. 8. Regarding question (c) -: We find that such an issue has been examined by thisCourt. The question is of taxing interest on NPA on accrual basisas argued by the revenue. The assessee however argues that itwas under the directives of RBI not to recognize interest of suchNPAs on accrual basis but to offer the receipt on actual basiswhich the assessee in the later year had done and offered it totax. 9. In a recent judgment dated 02/04/2019 in Income Tax Appeal No.237/17 and connected Appeal in case of PrincipalCommissioner of Income Tax-5 Vs. Bajaj Finance Limited, thisCourt in context of a similar issue had held as under; “6.Gujarat High Court in case of Principal CIT Vs.MahilaSewa Sahakari Bank Ltd1 had held that in case ofa co-operative bank, the interest on NPAs would not bechargeable to tax on mere accrual. The Court referred to andrelied upon the decision of the Supreme Court in the case ofSouthern Technologies Ltd Vs. Joint CIT2. We may notethat the decision concerns the assessment year 2010-11 whena co-operative bank was not included under Section 43D ofthe Act which was inserted by Finance Act, 2017 w.e.f1.4.2018. 7.In case of CIT Vs. Deogiri Nagari SahakariBank Ltd& Ors.3, this Court had expressed a similar view.We mayfurther clarify that in the said case, the Court wasconcerned with a similar claim raised by the co-operativebank and the Court did record that the assessee was a co-operative bank and not NBFC. However, this distinction maynot have much significance now in view of the fact that thisCourt in case of CIT Vs. M/s. KEC Holdings Ltd (Income 17 / 19 02-ITXA-266-17.odt Tax Appeal No. 221of 2012 decided on 11.6.2014) held andobserved as under:- 7.In case of CIT Vs. Deogiri Nagari SahakariBank Ltd& Ors.3, this Court had expressed a similar view.We mayfurther clarify that in the said case, the Court wasconcerned with a similar claim raised by the co-operativebank and the Court did record that the assessee was a co-operative bank and not NBFC. However, this distinction maynot have much significance now in view of the fact that thisCourt in case of CIT Vs. M/s. KEC Holdings Ltd (Income 17 / 19 02-ITXA-266-17.odt Tax Appeal No. 221of 2012 decided on 11.6.2014) held andobserved as under:- "8. The assessee had credited only an amount ofRs.38,57,933/-as interest on loans. The AssessingOfficer was of the view that the interest accrued on theentire loans should have been shown as income. Thedetails as to how the interest income on accrual basisshould have been disclosed are, therefore, referred to bythe Tribunal. The Tribunal held that the said incomewas not realized. It held that the assessee follows themercantile system of accounting. The Tribunal held thatthe loan advanced by the assessee which was in NBFChad become non-performing asset. That is how followingjudgments rendered by the Hon'ble Supreme Court andthe Delhi High Court, the Tribunal has eventually heldthat once there is no dispute that the interest consideredas accrued was a non-performing asset as per ReserveBank of India guidelines, then, the income from thisinterest did not accrue to the assessee. It is in suchcircumstances, that this income in question was not andcannot be assessed on accrual basis. We do not find that the Tribunal has either misdirecteditself in law or its order can be termed as perversewarranting interference in our appellate jurisdiction. Wefind that the view taken by the Tribunal accords withthe Reserve Bank of India guidelines and which are not in any way in conflict with the Income Tax Act, 1961,the Hon'ble Supreme Court has held in the case of UCOBank that the interest income would have been broughtto the Profit and Loss Account provided it was actuallyrealized, that in case of Nationalized Bank it treatedsomething which is doubtful, and therefore, kept it in asuspense account, was held to be a permissible exercise.In respect of the loans which are advanced, recovery ofsome of them if considered doubtful, then, even theinterest on the loans advanced may not be realized. Thatis how the amount is not brought to the profit and lossaccount because they are not likely to be realized by thebank or a NBFC as well. It is permissible therefore todisclose or to show them as income in assessment year inwhich either the interest amount or part of it isrecovered. The Tribunal in this case, namely, of theassessee before us, has precisely followed this course. Wedo not find that the course permitted and upheld by theTribunal is in any way in conflict with any legalprovisions or the settled principles. Rather as held by us,it is in accordance with the same. Once the view takenby the Tribunal was possible and in the given facts andcircumstances the income has not been realized by theassessee, the addition was rightly deleted. We, therefore,do not find that the appeal raises any substantialquestion of law. It is accordingly dismissed. No costs." 8.Delhi High Court in case of CIT Vs. Vasisth Chay VyaparLtd4 held that interest on NPAs cannot be taxed onaccrualbasis. It was noted that NBFC would be governed by thedirections issued by the Reserve Bank of India and RBIdirectives provided that under certain circumstances, a loanor advance would be treated as NPA. The Court on the realincome theory held that such interest would not be taxable.We notice that the decision of the Delhi High Court in caseof Vasisth Chay Vyapar Ltd (supra) was carried in theappeal by the Revenue before the Supreme Court. TheSupreme Court in the judgment reported in [2018] 253Taxman 401 (SC) approved the decision of the High Courtand dismissed the appeal. Under these circumstances, thisquestion is not entertained.” 8.Delhi High Court in case of CIT Vs. Vasisth Chay VyaparLtd4 held that interest on NPAs cannot be taxed onaccrualbasis. It was noted that NBFC would be governed by thedirections issued by the Reserve Bank of India and RBIdirectives provided that under certain circumstances, a loanor advance would be treated as NPA. The Court on the realincome theory held that such interest would not be taxable.We notice that the decision of the Delhi High Court in caseof Vasisth Chay Vyapar Ltd (supra) was carried in theappeal by the Revenue before the Supreme Court. TheSupreme Court in the judgment reported in [2018] 253Taxman 401 (SC) approved the decision of the High Courtand dismissed the appeal. Under these circumstances, thisquestion is not entertained.” 10. In the result the Income Tax Appeal is dismissed. (SARANG V. KOTWAL, J.) (AKIL KURESHI, J.)